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Whistleblower Regime Update

Rohan Harris, Libby Pallot, Rory Maguire, and Angela Liu

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 has now been passed by the Senate - with a number of significant amendments - and is awaiting approval by the House of Representatives in order to finally take effect.

Status of the new whistleblower laws

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (Bill) was passed by the Senate, with amendments (see below), on 6 December 2018.  The Bill must now pass the House of Representatives in the same form before it can receive Royal Assent, and will then take effect on the first day of the second quarter following Royal Assent.  As Parliament has now adjourned until February 2019, the earliest that these reforms can apply is 1 July 2019.

Key changes to the proposed whistleblower regime 

In our last corporate alert on “Whistleblower Reform”, we provided a summary of the proposed whistleblower reform package. In addition to the changes summarised, the Senate has now made a number of further amendments, including:

  • that certain “personal work-related grievances” of a discloser have been excluded from protection under the whistleblower regime, with examples of such grievances being:
    • an interpersonal conflict between the discloser and another employee;
    • a decision relating to the engagement, transfer or promotion of the discloser;
    • a decision relating to the terms and conditions of engagement of the discloser; and
    • a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser;
  • a protected disclosure can now also be made to a ‘senior manager’ (aligning with that concept under the Corporations Act), but supervisors and managers have been removed from the class of persons to whom a protected disclosure can be made;
  • giving whistleblowers the ability to make a claim for compensation against a company if the company allows a third party to victimise the whistleblower;
  • excluding "due diligence" as a defence for a company breaching their duty to protect a whistleblower (but due diligence can be considered as a mitigating factor when assessing an employer's liability); and
  • replacing the original “emergency disclosure” regime with two new categories of protected disclosures, being a “public interest disclosure” and an “emergency disclosure”.
Requirement to have a whistleblower policy

Under the original timetable of the Bill, all public and large proprietary companies were required to have a whistleblower policy in place by 1 January 2019.  However, due to the delay with the Bill’s passage through parliament, this requirement has been extended to the date that is 6 months after the Bill takes effect.

Further assistance 

For further assistance regarding the new whistleblower protection regime, please contact  Rohan Harris, Libby PallotRory Maguire, or Angela Liu.

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